Court says mandate unconstitutional

The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law.

The suit was brought by 26 states — nearly all led by Republican governors and attorneys general — and the National Federation of Independent Business. The Department of Justice is expected to appeal.

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The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate.

Judge Stanley Marcus, in a dissenting opinion, said the mandate is constitutional. He was also appointed by Clinton.

The panel partially upheld a ruling issued in January by Judge Roger Vinson, who struck down the entire health reform law. However, the 11th Circuit said that the rest of the legislation can stand even if the mandate is unconstitutional.

The panel also said that the law’s expansion of Medicaid is constitutional, ruling against the states.

The Department of Justice won’t say yet whether it will appeal to the Supreme Court or ask the entire 11th Circuit to review the decision.

The majority of the panel said they couldn’t uphold the mandate because there would be no limit to Congress’s powers if they did. Opponents of the law have frequently argued that if Congress can require people to buy insurance, they can force people to do anything else, such as buy broccoli or a gym membership for their health benefits. Vinson cited this broccoli argument in his sweeping ruling striking down the entire law.

“We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,” Dubina and Hull wrote in an expansive, 200-page ruling. “‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”

The federal government argued that the law regulates only how people obtain health care — something all Americans will need at some point in their lives. They say the uniqueness of the market makes health care different than broccoli or gym purchases.

“People are seeking this good already,” Neal Katyal, the acting solicitor general, said during oral arguments. “It’s about the failure to pay, not the failure to buy.”

During oral arguments in Atlanta in June, the panel spent a significant amount of time discussing whether the mandate is “severable” from the rest of the law. Hull in particular asked the federal government three times where the line should be.